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  • 9.2 Protection of Catalogues and Databases
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§49 of the Copyright Act contains provisions relating to the copyright protection of catalogues and databases. The provisions provide protection to catalogues that compile a large quantity of data and databases which have required substantial investments to create. The protection of catalogues and databases in the Copyright Act is essentially different from the protection of literary and artistic works. [1] Originality is not a prerequisite for their protection; it is enough if the amount of data is large or the resources used for collecting the data are substantial. The reason behind protecting catalogues and databases is primarily the need to protect the human, technological and financial investments used for their creation. In other words, it has to do more with protecting investments than the products of creative work.

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Protection of Producers

The copyright of catalogues and databases is credited to their producer. In this respect, too, the protection of catalogues and databases differs from the protection of works described in §1 of the Copyright Act. To be more precise, "producer" refers to the party that takes the initiative for and the risk over the investment. In most cases the company or organization where the work is created is considered the producer. Therefore, unlike copyright, the right to a catalogue or database can be credited to a legal person right from the start. [2]

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9.2.1 Catalogues

Object of Protection

A catalogue is protected in the meaning of the Copyright Act as a catalogue, table or program, or any other production in which a large quantity of data is compiled. The provisions relating to the protection of catalogues extend, e.g., to telephone directories, calendars, forms, tables, timetables and other directories. With regard to the right to protection, it is irrelevant whether the catalogue is in electronic or printed form.

It should be noted that copyright does not protect ideas or individual pieces of information which, as a rule, remain in the public domain. For example, the Copyright Council¿s opinion 1989:3 states that the protection of catalogues extends to the compilation and grouping of information, not individual facts that can be freely exploited and combined to create new works or catalogues. [3] Thus, the provisions on the protection of catalogues apply only to combinations of large amounts of data and the related investments.

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Requirements for Protection

In order to be protected, a catalogue must combine large amounts of data. There are no other requirements for achieving catalogue protection in the Copyright Act. Thus, the protection is not conditional on any criteria relating to the selection and organization of the content or its originality. It would not be practical to determine a precise rule on what should be considered a large amount of data in each particular case. Whether or not the requirement is met is decided on a case-to-case basis.

In its opinions, the Copyright Council has considered, among others, a name day calendar containing 752 names (decision 2005:15) [4], a flag collection containing 197 flags (decision 2000:9) [5], and a compilation of 200 document templates saved on a computer diskette (decision 1995:15) [6] to constitute catalogues in the meaning of the Copyright Act.

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9.2.2 Databases

Object of Protection

The Copyright Act provides protection to databases on the basis of a special sui generis principle that differs from the protection of catalogues. A collection of works, data or other individual materials that allows individual access through electronic or some other means can constitute a database referred to in the Act regardless of its format. Both electronic and printed databases can be protected.

Therefore, all collections of literary, artistic, musical or similar works and collections containing text, sound, images, numbers, facts or data can be considered to constitute a database. As with the protection of catalogues, the protection of databases, too, applies to their content as a whole, not any individual works or pieces of information they contain.

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Requirements for Protection

In order for a database to be protected, the obtainment, verification or presentation of its contents must have required a substantial investment. Substantial investment may refer to intellectual, technical, financial or some other major investment. "Obtaining of content" refers to the resources required to search for existing materials and combine them within a database. "Verification" refers to the resources required for checking the validity, authenticity and reliability of the data and the works that have been obtained when creating the database and during its operation. Sometimes it is difficult to distinguish between the obtainment and verification of data and works. A database can also be in a format that does not allow access without implementing technical or other changes. "Presenting" refers to such processes which enable individual access to the database. In other words, this refers to the resources required for the systematic and methodological organization of materials and data.

The only prerequisite for protection is that any one of the content-related processes (obtaining, verification or presentation) is considered to constitute a substantial investment in the meaning of the Act. If we look at the opinions of the Copyright Council, the amount of investment required for obtaining protection appears to be rather easily attainable. The database's rightholder has the burden of proof concerning the question as to whether the processes related to the database have required a substantial investment. This means that the rightholder must be able to provide information about the labour costs of the persons who participated in the creation of the database or other costs related to the database's creation.

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9.2.3 Rights Related to Protected Catalogues and Databases

Producers' Exclusive Rights

If a catalogue or database is protected, its producer – i.e. the party that takes the initiative for and the risk over the investment – has the exclusive right to control the entire content of the work or a part of the work that is considered substantial, evaluated qualitatively or quantitatively, by reproducing it and making the reproductions available to the public. However, as a rule, the producer does not have the right to control the individual pieces of information contained in the work.

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Reproduction

The exclusive right that the catalogues' and databases' producers have covers the permanent and temporary reproduction of the work's entire content or its substantial part. "Reproduction" refers to the copying or duplication of the material regardless of the method employed. In other words, reproduction takes place whenever the material is somehow "transferred" from the original storage medium to a new medium. The transfer can take place electronically, by way of manual copying or in some other way. Copying can be permanent or temporary. The only difference between the concepts is for how long the reproduction is stored. Even temporary storage of the material, e.g., in the computer's cache is considered reproduction. Therefore the permanent or temporary nature of the reproduction is usually relevant only when assessing the seriousness of an infringement or the magnitude of related compensation.

According to the established interpretive guidance of the Court of Justice of the European Communities [7], the concept of reproduction should be interpreted broadly to include all unauthorized use without consideration of the nature, purpose or form of the act. Thus, the only decisive factor with regard to reproduction is whether contents of the database have been "transferred"  from the database storage medium to another storage medium. The contents can be transferred to a similar or different storage medium.

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Making Available to the Public

The concept of "making available to the public" is also technology-neutral. The producer has the exclusive right to dispose of the work by making it available to the public regardless of the method employed. Thus, a catalogue or a database and their substantial parts can be made available to the public by distributing or renting copies or through online transfer or some other form of transfer.

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Substantial Parts

There is seldom confusion about what constitutes reproduction of a work's entire content or making the work available to the public. On the other hand, it can sometimes be difficult to determine what constitutes a substantial part of the work. As a rule, permission from the catalogue's or database's producer is not required when copying or making available to the public only an insubstantial part of the work.

The substantiality of a part is assessed using both quantitative and qualitative criteria. Its quantity is evaluated in relation to the entire content included in the catalogue or database. The larger the portion of the material that has been copied or made available to the public, the more likely it will be considered a substantial part of the work. The quality of the section in question is evaluated with a view to the extent of the investment it has required. The larger the investment required for obtaining, verifying or presenting the part that is copied or made available to the public, the more likely it will be considered to constitute exploitation of a substantial part of the work. The result of such evaluations largely depends on the evidence provided by the catalogue's or database's producer. The producer can support his claim by providing proof of expenses related to the creation of the catalogue or database (such as the labour costs of employees who have participated in obtaining and verifying the information) or programming costs related to presenting the work. Ultimately whether a part is substantial or not is decided on a case-to-case basis. In its decision 1989:3 regarding a catalogue, the Copyright Council stated that extracting 10,000 pieces of product information from a register of 62,000 that was protected as a catalogue did not constitute copying of a catalogue or its substantial part. [8]

The material contents of a database can be divided into thematic subgroups, or "modules". For example, a database can be divided into different branches of law, fields of arts or music styles. This also influences the evaluation of the quantitative or qualitative substantiality of the part in question. If the module constitutes a collection that is protected as a database, the part of the module that has allegedly been copied or made available to the public is compared against the size of the entire module.

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Systematic Use of Insubstantial Parts

The producer's exclusive right does not usually extend to the use of any insubstantial parts of the catalogue or database. Thus, anyone can copy an insubstantial part of the catalogue or database and make it available to the public without infringing upon the provisions relating to the protection of databases. However, in theory this would allow circumventing the protection of catalogues and databases, e.g., by copying the work in parts that separately did not constitute substantial parts of the catalogue or database. That is why the Database Protection Directive [9] expressly prohibits the repeated and systematic utilization of insubstantial parts of the contents of the database. The Copyright Act does not contain a similar provision. This has not been considered necessary as the systematic use of insubstantial parts leads to the creation of a substantial part, which falls under the Copyright Act's current wording with respect to both catalogues and databases. Ultimately, the decisive factor is whether the use of the catalogue or database (copying or making available to the public) has led to the creation of a substantial part of the catalogue or database.

However, it should also be noted that the provisions of the Copyright Act regarding copyright and related rights can also prohibit any insubstantial use of the database. If the catalogue or database contains at least one work that exceeds the required level of originality, copying it always requires obtaining information from the relevant copyright holder.

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Term of Protection

The term of protection for catalogues and databases is 15 years from the end of the year during which the catalogue or database was completed. For example, the term of protection of a database completed in 2010 will expire at the end of 2025.

If the catalogue or database is made available to the public before expiry of the term calculated from the work's completion, the term of protection is calculated from the year during which the catalogue or database was first made available to the public. For example, if the database was completed in 2010 but first made available to the public in 2015, its term of protection would extend until the end of 2030.

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9.2.4 Rights of Database Users

Lawful Users

According to the Copyright Act, any person who has the right to use the database is entitled to make copies of the database and perform any other actions that are necessary for accessing the database and the customary use of its content. A person who has been, by agreement, granted the right to use the database by the right-holder has the lawful right to use the database. The agreement does not necessarily have to be explicit; an implied permission or consent is also considered adequate.

For example, with regard to databases that are distributed on the internet with the author's permission and are available to all, it can be assumed that anyone who gets hold of such a database also has the right to use it.

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Invalidity of Prohibition of Insubstantial Use

With databases it is common that users must enter into a license agreement with the right-holder to be able to utilize the database. The license agreement contains detailed terms and conditions relating to the database's use. To protect database users, the Copyright Act contains provisions that prohibit right-holders from extending their legal rights. According to the Act, any condition in the agreement between the user and right-holder which prevents the user from exploiting any insubstantial part of the database, evaluated qualitatively or quantitatively, is invalid. Any such contractual term or condition lacks legal effect directly on the basis of the Act.

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Prohibition of Copying for Private Use

Machine-readable digital databases are considered particularly valuable and important objects of protection. This is why the Copyright Act prohibits copying them even for private use. According to the Copyright Act, it is not allowed to copy machine-readable databases for private use. However, such copying for private use is not considered a copyright violation. In other words, private copying of digital databases is prohibited but not punishable. Nevertheless, anyone violating the prohibition becomes liable to pay compensation to the right-holder in accordance with the Copyright Act's provisions on liability.

Notes and References

[1] Copyright Act § 49

[2] Copyright Act § 1

[3] Copyright Council's opinion 1989:3

[4] Decision 2005:15

[5] Decision 2000:9

[6] Decision 1995:15

[7] Court of Justice of the European Communities

[8] Decision 1989:3

[9] Database Protection Directive